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2025 DIGILAW 1706 (KER)

Sreemon v. State Of Kerala

2025-06-24

HARISANKAR V.MENON

body2025
JUDGMENT : HARISANKAR V. MENON, J. This writ petition is filed by the petitioners seeking to challenge Ext.P4 order issued by the 2 nd respondent appellate authority in an appeal filed by the 4 th respondent herein against a registration granted by the 3 rd respondent under the provisions of Rule 26A of the Kerala Headload Workers Rules, 1981 (hereinafter referred to as the “Rules”). 2. The 6 th petitioner unit herein is the employer in question. Petitioners 1 to 5 are stated to be in the rolls of the 6 th petitioner herein. The 6 th petitioner, it is not in dispute, is situated in a Scheme covered area. Petitioners 1 to 5 were arrayed by the 6 th petitioner herein, for issuing cards under the provisions of Rule 26A of the Rules. The 3 rd respondent herein issued Ext.P1 order dated 10.04.2017, finding that petitioners 1 to 5 have been carrying on the activity of the headload work at the 6 th petitioner unit herein and hence, if registration is being extended to the said petitioners, that may not be causing any loss of employment to others, especially when the 6 th petitioner unit is carrying on the activities in an enclosed compound. The 4 th respondent herein chose to file a further appeal against the findings in Ext.P1 order, as evidenced by Ext.P2 before the appellate authority. The 6 th petitioner - the employer - also filed its objections as evidenced by Ext.P3. 3. The matter was considered by the appellate authority, leading to the issuance of Ext.P4 order dated 02.02.2018. The appellate authority, upon enquiry, found that petitioners 1 to 5 were not employed in the unit in question. Therefore, they are not entitled for any registration, especially when a dispute as regards the claim of other headload workers was pending. Finding thus, the appeal filed by the 4 th respondent came to be allowed by the order at Ext.P4. 4. It is in such circumstances that the captioned writ petition is filed by the petitioners herein. 5. I have heard Sri.N.Sukumaran, the learned senior counsel, assisted by Sri.Vinay Kumar Varma, the learned counsel for the petitioners as well as Sri.Koshy George, the learned Standing Counsel for the 4 th respondent herein. 6. 4. It is in such circumstances that the captioned writ petition is filed by the petitioners herein. 5. I have heard Sri.N.Sukumaran, the learned senior counsel, assisted by Sri.Vinay Kumar Varma, the learned counsel for the petitioners as well as Sri.Koshy George, the learned Standing Counsel for the 4 th respondent herein. 6. The learned senior counsel Sri.N.Sukumaran would contend that the findings in Ext.P4 are illegal and arbitrary for the following reasons: i. According to him, the 4 th respondent herein has no power or authority for filing an appeal against the order at Ext.P1, as he is not at all an “affected party” so as to entertain an appeal. ii. He would further contend that, going by the findings in Ext.P1, the registration granted to petitioners 1 to 5 is perfectly legal and the 2 nd respondent was not justified in having found that petitioners 1 to 5 were not working with the unit in question. 7. Per contra, the learned Standing Counsel for the 4 th respondent would contend that: i. Going by the Scheme of Rule 26A, it was incumbent on the part of the registering authority to have issued a notice to the Board (the 4 th respondent) and in that view of the matter, the 4 th respondent was justified in having filed an appeal against the afore findings at Ext.P1. ii. He would further contend with reference to paragraph 21 of the Scheme that the committee concerned is the 4 th respondent herein and therefore, the 4 th respondent was justified in having filed an appeal. He would further add that on account of the order at Ext.P1, various other headload workers are affected and that is why the 4 th respondent has chosen to file an appeal. 8. I have considered the rival contentions as well as the connected records. This Court notices that two issues arise for consideration in this writ petition. 9. The first issue is as regards the entitlement of the 4th respondent to file an appeal against Ext.P1. The second issue is as regards the findings contained in Ext.P4, to the effect that petitioners 1 to 5 are not entitled for registration. 10. As regards the first issue, it is not in dispute that an appeal is being filed with reference to the provisions of Rule 26C of the Rules. The second issue is as regards the findings contained in Ext.P4, to the effect that petitioners 1 to 5 are not entitled for registration. 10. As regards the first issue, it is not in dispute that an appeal is being filed with reference to the provisions of Rule 26C of the Rules. Sub-rule (1) to Rule 26C reads as under:- “(1) Any person aggrieved by an order of the Registering Authority under sub-rules (3) or (4) of Rule 26A may file an appeal within 60 days from the date of receipt of such order before an officer not below the rank of District Labour Officer notified by Government as Appellate Authority in this behalf.” A reading of the afore would show that “any person aggrieved” by the order of the registering authority is entitled to file an appeal. A Division Bench of this Court in Jnana Prakasam v. Natarajan [ 2002 (1) KLT 39 ] has found that the term “aggrieved” also takes in “existing workmen” and hence the existing workmen are entitled to prefer an appeal against the orders granting registration. Further, another Division Bench of this Court in Shereef v. Muhammed Shefeek [2017 (3) KLT 106] has also held that with reference to the provisions of the Rules, the union of the workers or its Secretary is also entitled to prefer an appeal against the registrations granted under the Rules. When that be so, the question arises as to whether the 4 th respondent can prefer an appeal against the findings contained in Ext.P1. 11. This Court notices that the 4th respondent is the District Committee of the Kerala Headload Workers Welfare Board. A reading of the provisions of the Rules would show that the District Committee would be entitled to prefer an appeal against the findings at Ext.P1, going by the law laid down by the two judgments of the Division Bench of this Court referred to earlier. This is because when a union is entitled to prefer an appeal, I am of the opinion that the 4 th respondent, the District Committee, is also entitled to prefer an appeal. The judgment of the Full Bench of this Court in Sureshkumar R. and Others v. District Labour Officer , Thiruvananthapuram and Others [ 2021 (2) KHC 215 (FB)] , also supports this view. The judgment of the Full Bench of this Court in Sureshkumar R. and Others v. District Labour Officer , Thiruvananthapuram and Others [ 2021 (2) KHC 215 (FB)] , also supports this view. In that view of the matter, the first issue arising for consideration is decided against the petitioner. 12. The second issue arising for consideration is as regards the findings rendered by the 2 nd respondent in Ext.P4 order. This Court notices that the petitioners have filed an application seeking registration with reference to the provisions of Rule 26A of the Rules before the registering authority. A reading of the order at Ext.P1 would show that an appropriate enquiry has been carried out in the matter. There is a positive finding to the effect that, on the basis of the enquiry, it has come out in evidence that the petitioners 1 to 5 are already working with the 6 th petitioner unit and that they are also engaged in the activity for which the registration was sought for. When that be so, the registration granted at Ext.P1 with reference to the provisions of the Rules cannot be faulted. In this connection, this Court also takes note of the judgment of the Full Bench of this Court in Raghavan v. Superintendent of Police [ 1998 (2) KLT 732 (F.B.)] wherein this Court has categorically found the requirement for obtaining registration as regards the individual workers in a unit, with reference to the provisions of the Kerala Headload Workers Act and the Rules made thereunder. In the afore judgment, at paragraph 24 (7), it has been categorically found that it is for the employer to engage its permanent headload workers attached to the establishment for carrying out the loading/unloading work, whether it is an area where the Scheme is made applicable or not. To the same effect is the later judgment of this Court in Kerala Headload Workers Welfare Board v. Nishad [2022 (5) KLT 188] , wherein the Division Bench at paragraph 16(h) has held as under: “(h). When an application for registration is preferred by an attached worker, the enquiry by the registering authority must only be to ascertain whether the applicant is actually engaged in doing headload work in the establishment to which he is attached and if so, whether the headload work done by him is of predominant nature. When an application for registration is preferred by an attached worker, the enquiry by the registering authority must only be to ascertain whether the applicant is actually engaged in doing headload work in the establishment to which he is attached and if so, whether the headload work done by him is of predominant nature. The information in that regard can be gathered from the registers maintained by the employed in terms of Section 26 of the Act read with the Rules as also through a physical inspection at the premises of the establishment concerned. The registering authority cannot reject an application for registration on the ground that existing pool workers have raised objections to granting of such registrations. Unattached pool workers have no right to object to the grant of registration under Rule 26A to a worker who is attached to an establishment. It has been so held by a Division Bench of this Court in Gangadharan (supra). Their objections can only be raised at a time when an attached worker, who gets registered in terms of Rule 26A relinquishes his employment or engagement with the establishment to which he was attached, and then seeks to join the scheme in the area concerned, as a registered but unattached worker.” In the light of the afore, this Court notices that the registering authority has arrived at the decision at Ext.P1 after carrying out an appropriate enquiry as required by the provisions of the Act and Rules. It is in the light of the afore, the findings contained in the impugned order at Ext.P4 are to be considered. This Court notices that the 2 nd respondent, while issuing the order at Ext.P4 has merely stated that on “enquiry”, it has come out in evidence that petitioners 1 to 5 were not employed in the unit of the 6 th petitioner herein. This Court is at a loss to understand the basis for arriving at such a finding. This is because, in Ext.P4, there is no specific reference made to the enquiry carried out by the registering authority while issuing the order at Ext.P4. The 2 nd respondent has merely stated that on “enquiry”, petitioners 1 to 5 are not working in the unit concerned. What is the nature of the enquiry or the details of the enquiry have not been stated anywhere in the order at Ext.P4. The 2 nd respondent has merely stated that on “enquiry”, petitioners 1 to 5 are not working in the unit concerned. What is the nature of the enquiry or the details of the enquiry have not been stated anywhere in the order at Ext.P4. Therefore, I am of the opinion that the findings in Ext.P4 cannot be sustained, especially in the light of the entitlement of the 6 th petitioner – the employer – to have its own choice of workmen for employment in the unit in question, safeguarded by the various judgments rendered by this Court. 13. In such circumstances, I am of the opinion that the petitioner is entitled to succeed. In the result, this writ petition would stand allowed by setting aside Ext.P4 and restoring the registration originally granted pursuant to the order at Ext.P1 issued by the registering authority.